F. B. Fogel & Co. v. Brubaker, 122 Pa. 7

F. B. Fogel & Co. v. Brubaker

122 Pa. 7 | Pa. | 1888

Opinion,

Me. Justice Williams :

Sales of personal property are divisible, with reference to the question presented iii this case, into two classes, executed and executory. In the first of these, the articles are ordinarily sold upon inspection and the sale is completed by a delivery of the property, made at the time of sale. To this class of sales the rule of caveat emptor is properly applicable. If a warranty is desired by the purchaser he must stipulate for it before the sale is completed, otherwise he will be held to have bought upon his own judgment of the quality and value of the thing purchased. In the second class, the sales are made by sample or by description, the goods not being seen by the purchaser until they have been selected and forwarded by the seller in pursuance of the previous contract or order from his customer. The rule in these cases is not caveat emptor, but caveat venditor, for the duty of selecting and sending the article ordered by description or from sample is on the seller. The buyer is dependent on his good faith in the premises. If the article selected and forwarded by the seller is not of the kind ordered, or if, being of the kind ordered, it is not merchantable in quality, the buyer may refuse to accept it and give notice to the seller.

There is no implied warranty in executed sales except that of title; nor is there in any case, where the salp is made upon inspection by the buyer. In executory sales the seller warrants *15that the article shall be of the kind ordered, and merchantable in quality. This is the rule laid down in Borrekins v. Bevan, 3 R. 23, and followed through a long line of cases down to Selser v. Roberts, 105 Pa. 242. The warranty in these cases is part of the contract of sale, and the purchaser is under no obligation to take the article and sue on the warranty, but may refuse to accept it as not in compliance with the contract. As was said by this court in Dailey v. Green, 15 Pa. 126, “ When the contract is executory, as it always is when a particular article is ordered without being seen, from one who undertakes it shall be of a given quality or description, and the thing sent as such is never completely accepted, the buyer is not bound to keep it, or pay for the article on any terms, though no fraud was intended by the vendor.”

It is true that a delivery to the earlier is for many purposes a delivery to the purchaser, but such delivery is constructive* merely. The obligation to accept or reject the article arises, however, only upon an actual delivery. It is when the articles come under the observation of the purchaser and he is able to see whether they are such as he has ordered, that he is bound to elect whether to accept them or not. It is not his duty to go to the point where delivery is made to the carrier, to inspect the articles before their shipment; for he has a right to rely on the good faith of the seller who has undertaken to fill his order, according to its terms, and ship to him by the ordinary modes of transportation, and when the articles reach him is the first time at which examination is practicable, and is the time-contemplated by the contract. If the articles upon reaching their destination are not found to be such as the contract calls for, the seller has not performed on his part, and has no right to ask performance to any extent from his vendee. It was his own folly or fraud to ship an article not ordered, and he has no claim upon his vendee for freight, any more than he has for the purchase money of such an article. If the vendee has just ground for refusing to accept the performance offered, it is very clear that he is under no other obligation to his vendor than that of giving notice promptly of his refusal. The articles are then at the risk of the shipper and subject to the carrier's lien for freight.

These principles dispose of the case at bar and make a rever*16sal of the judgment of the court below necessary. Fogel & Co. ordered from Brubaker 600 bushels No. 1 long-berry red wheat, at one dollar per bushel on board cars at Mill way, which was the railway station at which Brubaker’s store-house was located. Tt was to be shipped to Ashland, Pa. When it reached Ash-land, the mill owners to whom Fogel & Co. had sold it, examined it and refused to accept it because it was musty. Brubaker was at once notified, and after some correspondence the wheat was returned to him at Millway as unmerchantable. He afterwards made sale of the wheat at eightj'-eight cents, and brought this suit against Fogel & Co. to recover the difference in price and the freight and expenses incurred in the shipment of the wheat to Ashland and back again, and the protest fees upon his drafts on the defendants for the price.

The learned judge instructed the jury upon the trial as follows : “ Mr. Brubaker, as all the testimony as to the contract shows, was to deliver the wheat to the purchaser on the track at Mill way, not at any other place; and where the delivery was to be made the examination and acceptance or refusal should have been made.” This instruction put the constructive delivery to the purchaser arising from the delivery to the carrier, in the place of the actual delivery to the buyer at the point of destination, and was clearly wrong. The instruction complained of in the second assignment of error is the logical-result of that just considered. The court said, “The law would not permit the purchasers to take it to Allentown or Ashland, or any other remote place for examination and acceptance or refusal.....The delivery on the track at Millway was all they could require him under his contract to do; the freight to and from any other place to which they took it, the law would require them to pay.”

The vice of this.instruction was, also, that it put the delivery to the carrier for the purpose of conveyance, in the place of the actual delivery to the purchaser. If, after the wheat reached Ashland, the point of actual delivery, the defendants had transported it to some other place, such transportation, not being within the contemplation of the contract, would have been at the cost of him who ordered it, but the defendant’s order was for wheat to be sent to him at Ashland. If the seller sent something not ordered and which the buyer refused to *17accept, it imposed no more obligation upon the buyer than if he had sent nothing. The seller failed to perform his contract. Whatever expenses were incurred in an ineffectual effort at performance he must pay. If the wheat had been injured on the journey an entirely different question would he presented, but the evidence shows that Brubaker, having loaded 500 bushels of good wheat into the car, put one hundred bushels in to fill it up, which had begun to heat and was musty. The condition of the wheat was not changed on the journey. The allegation was that the whole was rendered unmerchantable by the admixture. The question of performance was therefore properly raised, and the jury should have been instructed that if the wheat was not merchantable as “No. 1, long-berry red wheat,” the defendants had the right to reject it; and, the plaintiff having failed to perform tire contract on his part, had no right of action against the defendants for the freight or other expenses incurred by him.

Judgment reversed, and venire facias de novo awarded.